Court, Lawmakers Wrestle With Church-State Issues

Hasidic school case, new religious-freedom law are at forefront in this highly active legal area

By
James H. Andrews, Staff writer of The Christian Science Monitor /
December 9, 1993

BOSTON

THE Constitution's two clauses on church-state relations have been ``in play the last few years,'' as one commentator puts it, and recent developments continue to churn these unsettled areas of the law.

The First Amendment provides that government shall not establish - advance - religion nor prohibit ``the free exercise thereof.'' While they share the premise that church and state should stay at arm's length, the ``establishment'' and ``free exercise'' clauses embody distinct values reflected in different lines of cases.

* On the establishment front, the Supreme Court has agreed to decide a case involving a public-school district in New York State set up to teach disabled children in an Orthodox Jewish community. The justices could use this case, Board of Education v. Grumet, to overhaul the test used to analyze the separation of church and state since 1971.

* Supporters of religious liberty cheered the enactment last month of the federal Religious Freedom Restoration Act (RFRA). The law supersedes a Supreme Court decision that allowed legislatures to interfere with religious practices as long as the encroachment was not intentional.

At issue in establishment-clause cases is the extent to which government policy may endorse or support religion - or at least may ``accommodate'' religious views or practices.

Supreme Court rulings in this area have appeared contradictory. In the 1991-92 term, the high court ruled that a nonsectarian prayer offered by a clergyman at a middle-school graduation ceremony was unconstitutional - following previous cases banning prayer in public schools. Last term, however, the justices let stand a lower-court ruling in Texas allowing high school students, on their own initiative, to pray at graduation exercises.

Last term, the Supreme Court also decided two cases that went somewhat further than previous rulings in lowering the wall between church and state. The justices rejected a school board's policy that allowed civic and social groups to use school facilities for after-hours events but denied the same privilege to Christian groups. And the court ruled that tax money could be used to pay a deaf student's sign-language interpreter in a Roman Catholic school, just as in a public school.

To some constitutional scholars, these rulings do not favor religion; they simply require government neutrality toward religion. But other experts worry that the court has strayed from the separation of church and state.

In its 1971 ruling in Lemon v. Kurtzman, the high court said that, to be constitutional, a government action must have a secular purpose, its ``primary effect'' must neither advance nor inhibit religion, and it must not foster ``an excessive government entanglement with religion.''

But the Supreme Court has utilized the ``Lemon test'' unevenly. Sometimes, as in last term's sign-language-interpreter case, the court has ignored the test.

SOME court-watchers anticipate that the justices will use Board of Education v. Grumet to clarify the Lemon test. That's far from certain, however.

Most of the Orthodox Jewish children in Kiryas Joel, a village outside New York City, attend private religious schools. But the state of New York created a tax-supported school district in the village to provide nonreligious instruction to some 200 disabled Hasidic children who were uncomfortable in public-school special-needs programs. That district is under challenge.

Michael McConnell, a professor at the University of Chicago Law School, says the case would be ``an excellent vehicle'' for a reassessment of the Lemon test. Dr. McConnell says the test makes it too difficult for courts to uphold government policies - such as this one - that in his view ``accommodate'' religion without promoting it.

But other legal scholars, like Mark Tushnet of the Georgetown University Law Center in Washington, doubt that ``Lemon is seriously up for grabs in this case.'' The Supreme Court is unlikely ``to make any interesting new law on accommodation of religion,'' he says, because the justices could find that New York's ``gerrymandering'' on behalf of a religious sect was unconstitutional without making the often fine distinctions required by the Lemon test.

As to RFRA, a broad coalition of religious and civil-liberties groups lobbied for the law after the 1990 Supreme Court ruling in Employment Division v. Smith. There, two native American state employees in Oregon, who were fired because they had smoked the drug peyote in traditional ceremonies of the Native American Church, argued that their religious freedom was infringed.

The Supreme Court ruled that enforcement of an across-the-board law that was not targeted against religion did not violate the free-exercise clause. And the court abandoned earlier precedents that said government must have a ``compelling'' interest to enforce a law that interferes with religious practices.

Under RFRA, however, any government action that interferes with religion is unlawful unless it serves a ``compelling state interest'' in the manner that is ``least restrictive'' to religious freedom.

RFRA supporters say, after the peyote case, courts upheld 50 to 60 government infringements on religious rights. For example, local governments mandated autopsies over families' religious objections, and zoning laws banned churches from residential areas. But the statute could face constitutional challenges. Congress's power to dictate the contents or application of state and local laws rests on shaky grounds, says Bruce Fein, a legal columnist in Washington. A state or municipality sued under RFRA is likely to raise that defense, he says.